Excerpt:.....know of the decree only on 4th january, 1967. if this is the date from which the time would begin to run then the application for setting aside the ex-parte decree which was filed on 13th january, 1967 was clearly within time......parties, reference was made to an arbitrator and, upon the making of the award, respondent no. 1 filed an application in the trial court to make the award a rule of the court. (3) notices of this application and of the filing of the award were issued to the various parties. in so far as the appellant is concerned notices were issued to him on 13th january, 1966 and 16th february, 1966 but he was nto served for these dates. the case was, thereforee, adjourned to 16th march, 1966 for which date also the appellant was nto served as he was reported to be out of station. then the case was adjourned to 16th april, 1966 for which date notices were ordered to be issued to the appellant amongst others. however, on 16th march, 1966 the trial court passed a suo-motu order for effecting.....

Judgment:

S.N. Andley, J.

(1) This appeal is against the order dated June 13, 1968, of Mr. S. C. AhuJa, Sub-Judge First Class, Delhi, whereby he dismissed the application which had been filed by the appellant for setting aside the ex-parte decree passed by the trial Court on 13th May, 1966.

(2) The short facts relevant to the controversy which has been raised in this appeal are that the appellant is one of the guarantors in respect of the motor vehicle bearing registered No. U. P. D. 8312 for the purchase of which an advance was made by respondent No. 1 to one Devka Partap Singh. Since disputes had arisen between the parties, reference was made to an arbitrator and, upon the making of the award, respondent No. 1 filed an application in the trial Court to make the award a rule of the Court.

(3) Notices of this application and of the filing of the award were issued to the various parties. In so far as the appellant is concerned notices were issued to him on 13th January, 1966 and 16th February, 1966 but he was nto served for these dates. The case was, thereforee, adjourned to 16th March, 1966 for which date also the appellant was nto served as he was reported to be out of station. Then the case was adjourned to 16th April, 1966 for which date notices were ordered to be issued to the appellant amongst others. However, on 16th March, 1966 the trial Court passed a suo-motu order for effecting substituted service on, inter alia, the appellant and he ordered this service to be effected by publication in 'Ekta Sandesh'. Upon the publication having been made, a decree in terms of the award was passed ex-parte by the trial Court on 13th May, 1966.

(4) Respondent No. 1 appears to have taken out execution of this decree and the vehicle, in question, was attached on 4th January, 1967. It was then that on 13th January, 1967, the appellant filed an application under Order 9, rule 13, of the Code of Civil Procedure for setting the ex parte decree aside. This application was dismissed by the order which is under appeal.

(5) Two issues were framed by the trial Court. The first issue was whether there was sufficient cause to set aside the ex-parte decree and the second issue was whether the application was within time.

(6) On the second issue, the trial Court held that the application was barred by time. The trial Court took into consideration the fact that the petitioner had been served on 16th April. 1966 whereas the application for setting aside the decree was made on 13th January, 1967. In taking 16th April, 1966, for which date the appellant was served by substituted service, as the date from which the time would begin to run, the trial Court was clearly in error. Article 123 of the Limitation Act, 1963, provides, inter alias for setting aside a decree passed ex-parte. The period of limitation prescribed is thirty days and the time from which the period begins to run is the date of the decree or where the summons or notice was nto duly served, when the applicant had the knowledge of the decree. The Explanationn to this Article makes it clear that substituted service under rule 20 of Order 5 of the Code of Civil Procedure shall nto be deemed to be due service. thereforee, the time would begin to run nto from 16th April, 1966 when the appellant is alleged to have been served by substituted service but from the date of his knowledge of the decree. Such knowledge came to the appellant on 4th January, 1967 when the aforesaid vehicle was attached in execution of the decree. There is no evidence on behalf of respondent No. 1 from which any conclusion can be arrived at except this that the appellant came to know of the decree only on 4th January, 1967. If this is the date from which the time would begin to run then the application for setting aside the ex-parte decree which was filed on 13th January, 1967 was clearly within time. I, thereforee, hold that the application filed by the appellant was filed within time.

(7) On the first issue reliance is placed upon the substituted service effected upon the appellant, by publication in the 'Ekta Sandesh'. R.W. 2 who is the sub-editor of this Paper has been examined by respondent No. 1. He has deposed that this paper is published from Delhi and its publication is about eight thousand per day. He has also deposed that this paper is sold in various places through agents and on bookstalls.

(8) Although it may be true that this Paper is one of the Scheduled papers, what the Court has to see, when ordering service under Order 5, rule 20, of the Code of Civil Procedure, is to select a paper which will be adequate in the circumstances of the case. The appellant appears to reside in Mainpuri which is at a considerable distance from Delhi. The selection of this paper, to my mind, was nto a proper selection. It is probably to avoid the controversy as to whether the advertisement in a particular paper came to the notice of the persons to whom the summons is addressed, that rules have been made by the High Court, according to which, the paper in which the notice is published should send a copy of the particular issue to the party under postal certificate. In compliance with this requirement, this paper has filed a certificate of posting (Exhibit R. W. 2/3) which appears to refer to the Court of Mr. Prem Kumar Jain, P. C. S., Sub-Judge and to the court which was trying this suit and even the notice appears to have been sent to Gurubakhsh Singh, proprietor. Upper India Leather Works, 76, Dhan Singh Nagar, Rohtak Road, Serai Rohilla. Delhi and nto either to the appellant or at his address given in the petition.

(9) Under the circumstances, it is difficult to hold that this service was sufficient or that the appellant had knowledge of the passing of the decree or of the proceedings antecedent thereto prior to 4th January, 1967.

(10) I am, thereforee, of the view that issue No. 1 should also have been decided in favor of the appellant and I hold that there is sufficient cause to set aside the ex- farte decree.

(11) The appeal is, thereforee, allowed with costs.

(12) The file will be sent back to the trial Court. The parties, who are present today, are directed to appear in that Court on the 27th February, 1969.